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EBOLA: The Power to Isolate

Acker + Associates P.C. Newsletter



Thomas Eric Duncan, the first patient diagnosed with Ebola in the United States has died in isolation at a Dallas hospital.  Mr. Duncan’s female companion, his 13-year-old son, and two others are currently quarantined in a four-bedroom home on a remote property.  They are prohibited from leaving under the threat of prosecution.

The White House has announced that additional screening will begin at five U.S. airports for travelers arriving from West Africa.  Such screening will include taking the temperatures of travelers.

In Spain, the first woman known to contract Ebola outside of West Africa, is quarantined in a hospital, as is her husband.  Their dog, Excalibur, was euthanized as a precaution despite protests from the owners and animal rights groups.

Does the U.S. government have the power to isolate and quarantine individuals it suspects of having Ebola?  What about the constitutional protections of due process, freedom from search and seizure, and freedom of assembly?

The Supreme Court has interpreted the Commerce Clause of the U.S. Constitution (Art. I, Sec. 8, Cl. 3) as providing power for the government to isolate and quarantine, regardless of other constitutional protections.  The legislature has codified broad power to enable the Secretary of State to prevent the introduction, transmission, and spread of communicable diseases in the United States.

Ebola can only be spread through blood or bodily fluids.  It is not airborne.  Containment should be achievable in societies with the necessary resources and coordination.  For instance, Nigeria, the most populous country in Africa, recently reported that it has contained the spread of the disease with its “contact tracing” system.

What happens if Ebola mutates and becomes airborne or another, more contagious disease appears?  What if the populace is simply led to believe that such a superbug exists?  With the power to quarantine and isolate, we could find ourselves living in a police state.  Maybe certain science fiction movies are not so far from our future reality.